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Obtaining deputyship for Personal Welfare vs a camel passing through the eye of a needle

29th January 2014 by Contributor@Rescare

A belated update on this blogger’s Freedom of Information (FOI) request to the Office of the Public Guardian (OPG), via the Ministry of Justice, for statistics on the granting of Deputyships for Property and Affairs and for Personal Welfare.

After some correspondence between myself and the ‘Knowledge and Information Officer’ at the OPG, I asked for statistics on deputyships rather than deputies. This was intended to make the analysis of the statistics provided less complicated; the only caveat I would make is that the data provided does not identify deputyships in the two categories awarded to the same person, and that it does not distinguish between deputyships awarded to individual applicants and those awarded to court-appointed deputies such as solicitors.

However, from the figures provided it is obvious that is infinitely more difficult to obtain Deputyship for Personal Welfare than Deputyship for Property and Affairs. “It is easier for a camel to go through the eye of a needle…”

These are the questions and responses:

1. How many Deputyships for Property and Affairs have been granted since October 2007 (when the Mental Capacity Act 2005 was implemented)?

2. How many Deputyships for Personal Welfare have been granted since 2007?

3. How many Deputies for Property and Affairs are currently subject to supervision (at any level) by the OPG?

4. How many Deputies for Personal Welfare are currently subject to supervision (at any level) by the OPG

Your request has been handled under the Freedom of Information Act 2000 (FOIA). I can confirm that the department holds information that you have asked for, and I am pleased to provide this to you, as follows:

1. Since October 2007, 82,580 Deputyships for Property and Affairs have been granted.

2. Since October 2007, 743Deputyships for Health and Welfare (personal welfare) have been granted.

3. There are currently 31,800 Deputies for Property and Affairs subject to supervision at any level by the OPG.

4. There are currently 810 Deputies for Health and Welfare (personal welfare) subject to supervision at any level by the OPG.

The statistics bear out the now clearly stated position of the judiciary within the Family Division that they are reluctant to award Deputyship for Personal Welfare to particular individuals or parties until all other possibilities in a decision-making process have been exhausted.

The analysyis presented here corroborates the evidence presented by Lucy Series in a blog article on The Small Spaces website, from November 2011, entitled “Applications for permission to the Court of Protection – A statistical analysis “. Lucy Series spoke to Judge Denzil Lush, then the Senior Judge at the Court of Protection, who shared with her some information he has collated about his workload since 2008. This is the same data Denzil Lush had also previously shared with a delegation from Rescare.

The blog also quotes a Court of Protection report on why so many applications for Deputyship for Personal Welfare are refused:

There are several reasons why the court does not consider it necessary to appoint a deputy to make personal welfare decisions. The main reason is that section 5 of the MCA confers a general authority for someone to make decisions in connection with another’s care or treatment, without formal authorisation, provided: that P lacks capacity in relation to the decision; and it would be in P’s best interests for the act to be done. Another reason is that, when considering the appointment of a deputy, the court is required to apply the principles in section 16(4) that: “(a) a decision of the court is to be preferred to the appointment of a deputy to make a decision; and (b) that the powers of the deputy should be as limited in scope and duration as is practicable in the circumstances.” In reality, a deputy is rarely needed to make a decision relating to health care or personal welfare, because section 5 already gives carers and professionals sufficient scope to act. The final reason is that personal welfare decisions invariably involve a consensus between individuals connected with P – healthcare professionals, carers, social workers and family – about what decision is in P’s best interests. If the court appoints a personal welfare deputy, particularly if it’s done without a hearing and considering oral arguments from each side, it could upset the balance of that consensus, and could be seen to favour the deputy’s views over others’.

This interpretation by the judiciary of the Mental Capacity Act (MCA) apparently still holds.The House of Lords Select Committee on the Mental Capacity Actcontinues to take written and oral evidence from a range of witnesses. The Committee has a reporting deadline of 28th Feb. 2014. Some of the evidence already presented and published suggests to us that the Committee will have grounds for criticism of how the MCA is being interpreted and implemented, but we just have to wait…

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